NELSEN v POLICE [2026] SASC 109

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE WICKENS) MCCRM-24-047030 Appellant: STEPHEN KENNTH RAY NELSON Counsel: MR M ANDERSON - Solicitor: WEBSTERS LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS S TYRRELL - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 26/05/2026 File No/s: SCCRM-26-006851 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. NELSEN v POLICE [2026] SASC 109 Judgment of the Honourable Justice Bochner 24 July 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE This is an appeal against conviction imposed by a Magistrate. On 6 February 2026, the appellant was found guilty of the offence of driving while having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). He has appealed on the grounds that the Magistrate erred in his findings that the failure of the breath analysing instrument to produce a statement in writing did not amount to a finding that the instrument was not in proper working order, that the prosecution did not need to provide evidence that a second breath analysis operator was authorised, and that the breath analysis operator did not fail to deliver the appellant with the prescribed oral advice and the prescribed written notice ‘forthwith’, as required under s 47K of the Road Traffic Act 1961 (SA). The appellant made submissions to the effect that the printing function of the breath analysis instrument, the authorised operator and delivery of the prescribed oral advice and written notice forthwith, are integral to the operation of s 47K and that the prosecution failed to provide evidence to establish its proper compliance. The respondent made submissions that in order to displace the presumption in s 47K, the appellant must prove, on the balance of probabilities, that a proper analysis was not carried out, and that the Magistrate made no error on his findings on the evidence. -- 1 of 14 -- The effect of s 47K is the reversal of the onus of proof as to the operation of the instrument. It is for the appellant to prove, on the balance of probabilities, that the instrument was not in proper order. In the absence of any evidence whatsoever that the analysis function of the instrument was adversely affected when the printer did not work, he has failed to do so. While there was undoubtedly a delay while the instrument’s printing function was fixed, the delay was a matter of minutes only, had no effect on the validity of the reading and did not prejudice the appellant’s ability to have a blood sample taken thereafter. The efficacy of the test and the appellant’s rights to have a blood sample taken were in no way affected or altered. Held: 1. Appeal dismissed. 2. The matter be remitted to the Magistrates Court for sentence. Road Traffic Act 1961 (SA) ss 47B and 47K, referred to. Fauser v Boyle (1993) 19 MVR 515, applied. Police v Stephen Kenneth Ray Nelsen [2026] SAMC 14, discussed. Coleman v Police (SA) [2024] SASCA 30; Police v Butcher (2014) 119 SASR 509; Police v Henwood (2005) 92 SASR 15, considered. -- 2 of 14 -- NELSEN v POLICE [2026] SASC 109 Magistrates Appeal: Criminal 1 BOCHNER J: On 6 February 2026, Stephen Kenneth Ray Nelsen (“the appellant”) was found guilty of the offence of driving while having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (the Act). He has appealed his conviction for that offence. Grounds of Appeal 2 The appellant relied on the following grounds of appeal:1 1. The Learned Magistrate erred in his finding that the failure of the breath analysing instrument (“the instrument”) to produce a statement in writing did not amount to evidence to the contrary of the assertion that the instrument was in proper order which was contained in the certificate pursuant to section 47K(3)(b) of the Road Traffic Act 1961 (“the Act”). 2. The Learned Magistrate erred in his finding that Prosecution did not need to provide evidence that a second breath analysis operator was authorised by the Commissioner of Police to operate the instrument in order to enliven the statutory presumption that the appellant’s blood alcohol reading at the time of the breath analysis test was his reading for the preceding three hours which is set out in section 47K (1) of the Act. 3. The Learned Magistrate erred in his finding that the breath analysis operator did not fail to deliver the appellant with the prescribed oral advice and the prescribed written notice ‘forthwith’ as required by section 47K (2a)(a) of the Act. Factual Background 3 On 6 November 2024, the appellant was driving a motor vehicle on Moonta-Wallaroo Road when at about 8.30 p.m. he was stopped by Senior Constable Claughton because of a faulty tail light on the trailer that the vehicle was towing. He was directed to submit to an alcotest, which returned a positive result. The appellant then accompanied the Senior Constable to the Kadina Police Station for the purpose of a breath analysis test. 4 The breath analysis procedure at the police station was captured on Senior Constable Claughton’s body-worn video camera.2 The sequence of events captured in this video can be summarized as follows: • At about 9.12 p.m. the appellant was directed to blow into the breath analysing instrument (namely, a Lion Intoxilyzer 8000, which I will refer to 1 Substituted Appeal Grounds, FDN 3. 2 Copy of body-worn footage containing Exhibit P3 provided to the Supreme Court for the purpose of this appeal. -- 3 of 14 -- [2026] SASC 109 Bochner J 2 as “the instrument”). The appellant complied with the direction of the Senior Constable and provided a sample for breath analysis. • At about 9.16 p.m. a second sample was provided by the appellant. • At about 9.19 p.m. the instrument indicated a result on its screen. At this stage, it was expected to produce a paper copy of the readings of the breath analyses (referred to as the “statement in writing”). Instead, it produced a blank piece of paper. • At about 9.21 p.m. Senior Constable Claughton radioed another police office, Senior Constable Johnson, requesting assistance with the operation of the instrument in order to produce the statement in writing. • At about 9.25 p.m. Senior Constable Johnson arrived. She appeared to run a test on the instrument to test its printing function. She stated that the machine should be printing properly. Senior Constable Claughton appeared to enter a command into the instrument to print the last test recorded, resulting in the production of the printout of the readings of the breath analyses. • At about 9.28 p.m. the statement in writing was delivered to the appellant. • At about 9.29 p.m. the appellant was read the prescribed oral advice by Senior Constable Claughton pursuant to s 47K(2a)(a) of the Act. • At about 21.32 p.m. the appellant was delivered a copy of the prescribed written notice by Senior Constable Claughton pursuant to s 47K(2a)(a) of the Act. 5 The appellant was convicted following a trial in the Magistrate’s Court and is awaiting sentence subject to this appeal. The decision of the Magistrate 6 After summarising the facts giving rise to the positive breath analysis, the Magistrate noted that it was not disputed that Senior Constable Claughton was authorised by the Commissioner of Police to operate the instrument. He then set out the evidence relied on by the prosecution: an evidentiary certificate produced pursuant to s 47K(3)(b) of the Act, to the effect that Senior Constable Claughton was authorised to use the instrument and that, on 6 November 2024, he used the instrument in relation to a breath analysis of the appellant, it was in proper order and it was properly operated and the relevant provisions of the Act were complied with; and a second evidentiary certificate provided pursuant to s 47K(7) of the Act, to the effect that Senior Constable Claughton certified that the appellant submitted to a breath analysis, that the prescribed oral advice and the prescribed written notice were given to him in accordance with the Act, and, at the request of the appellant, an approved blood test kit was delivered to him pursuant to s 47K(2a)(b) of the Act. He said that the prosecution’s case was that, if the evidentiary -- 4 of 14 -- [2026] SASC 109 Bochner J 3 certificates were admitted as evidence, they amounted to proof beyond reasonable doubt that the appellant was driving his vehicle while he had in his blood an amount of alcohol exceeding the prescribed concentration. 7 The Magistrate then summarised the four issues raised by the appellant. The first of these was that the certificate certifying that the instrument was in proper order should not be admitted into evidence because there is evidence to rebut the assertion that it was in proper order. In relation to the first issue, the Magistrate explained the reasoning of the appellant: that there was sufficient evidence to rebut the presumption that the instrument was in proper order. This evidence was provided by Senior Constable Claughton, who described to the Court the difficulty that he had printing the statement in writing. The Magistrate described this evidence as follows:3 ... His assertion was that the printer and keyboard formed part of the instrument. The instrument attempted to print the statement in writing after it indicated a result, however, the paper did not feed properly. The paper that was expelled from the instrument was blank. The lever on the printer was in the unlocked position, so Senior Constable Claughton locked it down in an attempt to get the printer to work. Senior Constable Claughton called Senior Constable Johnson for advice and assistance with the printer. In the footage captured by Senior Constable Claughton's body-worn recorder, which is in evidence at P3, Senior Constable Johnson can also be heard to say, 'How strange', when she was told that the instrument had not printed correctly. 8 He noted the appellant’s submission that an instrument cannot be said to be in proper order if one of its integral components – the printing function – is not working as intended. Given that Senior Constable Claughton had conceded in cross-examination that he was not an expert on the operation of the instrument, the prosecution needed to call an expert to establish this contention. 9 The second issue raised by the appellant was that there was no evidence before the Court that the instrument was in proper order and properly operated for the analysis of the second sample taken at approximately 9.15 p.m., as the certificate relates only to the first sample taken at 9.11 p.m. The appellant said that each test is regarded as a separate breath analysis and therefore a separate certificate should be tendered in relation to each. The certificate relied on by the prosecution related only to the first sample, while it was required to prove the relevant facts for each sample taken in order to enliven the presumptions under s 47K(1) of the Act. As there is no evidence to establish that the instrument was operated properly or was in proper working order for the second test, it cannot be confirmed that the second reading at 9.15 p.m. was accurate. As a result, the relevant presumption is not available to the prosecution. 10 The third issue raised by the appellant was that the prosecution failed to establish that Senior Constable Johnson was authorised to operate the instrument pursuant to s 47K(1) of the Act. The appellant contended that Senior Constable Johnson operated the instrument between 9.25 p.m. and 3 Police v Stephen Kenneth Ray Nelsen [2026] SAMC 14, [16]. -- 5 of 14 -- [2026] SASC 109 Bochner J 4 9.27 p.m. by manipulating the instrument in order to correct the operation of the printer. The appellant asserted that there was no evidence that her intervention did not affect the readings produced by the instrument. 11 The fourth contention raised by the appellant was that the police failed to comply with the Act, in that the prescribed oral advice and the prescribed written advice were not given to him forthwith after he submitted to the breath analysis and the instrument indicated that alcohol present in his blood exceeded the prescribed concentration. The appellant said that the delay of approximately 10 minutes between the time that the instrument indicated a result and the time when Senior Constable Claughton commenced giving the prescribed oral advice was inordinate and excessive, and Senior Constable Claughton should have given the prescribed oral advice while he was waiting for Senior Constable Johnson to attend to assist with the printing issue. Senior Constable Claughton told the appellant that he was aware of the result of the breath analysis tests, but withheld this information from him despite his evident desire to know the result. This has led to a failure to comply with s 47K(2a)(a). 12 Under the heading “Analysis”, the Magistrate addressed each of the arguments made by the appellant. He dealt with the second issue first, and said that the prosecution relied on only one of the two readings to prove the charge. Both readings were identical; were they not, the prosecution would rely on whichever was lower. The test relied on by the prosecution is the first test and a certificate was tendered in relation to that test. The Magistrate then said:4 …I am of the opinion that the certificate provided is evidence relating to the analysis procedure in its entirety. He found that the prosecution was entitled to rely on the certificate to prove the charge. 13 In relation to the first contention, the Magistrate expressed the view that the printing function of the instrument is a function that is undertaken subsequent to the analyses of the breath samples. The printout amounts to no more than a record of the analyses. Once the problem with the paper feed was rectified, a compliant statement was produced. This does not amount to evidence that the instrument failed to perform accurately the analyses. The Magistrate found that the prosecution was entitled to rely on the certificate to prove the charge. 14 The Magistrate also rejected the appellant’s argument that Senior Constable Johnson had operated the instrument. He found that the assistance provided by Senior Constable Johnson was only to correct a paper feed error, and that the operation of the instrument to produce a breath analysis reading was undertaken by Senior Constable Claughton before she entered the room. The statement in writing establishes that the second sample was collected approximately 10 minutes before she entered the room; in the absence of any 4 Ibid, [26]. -- 6 of 14 -- [2026] SASC 109 Bochner J 5 evidence about how she might have affected the analyses of the samples, it amounts to no more than speculation that her intervention may have done so. It is clear from the body-worn video that it is Senior Constable Claughton who caused the instrument to print the statement. He rejected the contention that Senior Constable Johnson operated the instrument at any time. As a result, the prosecution was entitled to rely on the certificate that asserted that Senior Constable Claughton was a person authorised to operate the instrument, in the absence of any certification as to Senior Constable Johnson’s authorisation to operate it. 15 Finally, the Magistrate rejected the appellant’s contention that the statement in writing was not delivered to him forthwith, because of the delay of 10 minutes, which arose as a result of the paper jam. He referred to the statement of Duggan J in Fauser v Boyle,5 where he said: ... The effect of a statutory obligation to comply with a requirement forthwith will depend upon the particular enactment. However, it has been held in the case of some statues that the use of the word does not require compliance immediately without the occurrence of an intervening event. He then discussed the reasons why the prescribed oral advice and written notice should be provided forthwith. He concluded:6 Were there not the issue with the printer on the instrument then the advice would have been able to have been given in a shorter time frame after the provision of the notice in writing. That being said, there were other delays occasioned by providing the defendant with a drink and answering questions at the time as well. Following the reasoning in Fauser v Boyle, in all of the circumstances the delay between the conclusion of the testing procedure at 2119hrs and the provision of the advice some 9-10 minute later is, in all of the circumstances, still 'forthwith'. The defendant has not been materially prejudiced by this delay of 9-10 minutes. The prosecution are entitled to rely on the certificate tendered as P7. 16 The Magistrate determined that he was satisfied beyond reasonable doubt that the charge against the appellant was proven. 17 I will deal with each of the grounds of appeal in turn. Ground 1 18 The appellant submits that the Magistrate erred in finding that the printing function was subsequent to the analysis function and amounted only to a record of the testing. He says that the printing function is an integral component of the instrument and if this is not working then the instrument cannot be said to be in proper order. The question that the Magistrate was required to ask was whether there was evidence which contradicted the statement in the certificate, not whether the instrument could produce an accurate reading despite its inability to print the 5 (1993) 19 MVR 515, 518. 6 Police v Stephen Kenneth Ray Nelsen [2026] SAMC 14, [32]. -- 7 of 14 -- [2026] SASC 109 Bochner J 6 required statement in writing. The prosecution should have led expert evidence on this question at trial. 19 He further submits that, in order to be able to certify that the instrument was in proper order, Senior Constable Claughton needed to demonstrate that it operated as intended by the manufacturer from when it was turned on until it had completed printing the statement. It was clear, both from Senior Constable Claughton’s evidence at trial and from the footage from his body-worn camera, that the instrument was not in proper order as it would not print as expected. Senior Constable Claughton’s own evidence was that he was not an expert in the operation of the instrument and that he considered that the printer formed part of the instrument as a whole. As a result, Senior Constable Claughton was aware that it was not in proper order and so could not produce the certificate. The certificate should not have been admitted into evidence, leading to the failure of the prosecution’s case. 20 The respondent says that in order to displace the presumption in s 47K(3)(b) the appellant must prove, on the balance of probabilities, that the instrument was not working properly or was not operated properly as a result of which a proper analysis was not carried out. It is not sufficient for the appellant to challenge one aspect of the certificate. The evidence on which the appellant relies must be directed to the instrument’s operation which would prevent or hinder it from indicating a reliable reading. 21 The respondent submits that the appellant has failed to adduce any evidence to support the contention that the fault with the printer interfered with the reading provided by the instrument. At the time that the instrument was meant to print, the analysis had already occurred, and the printer was simply recording the results in writing. 22 The respondent contends that the finding of the Magistrate, that the printing function occurred subsequent to the analysis function of the instrument, should be regarded as correct. Consideration 23 In Coleman v Police,7 the Court of Appeal said: …the purpose of the certificate is to establish a statutory presumption without regard to the facts. To require a police officer to have a “reasonable belief” in the matters certified is contrary to the intent and purposes of the statutory provisions. In so saying, the Court of Appeal endorsed the words of Stanley J in Police v Butcher,8 where he said: 7 (2024) 114 SASR 486, [40]. 8 (2014) 119 SASR 509, [65]. -- 8 of 14 -- [2026] SASC 109 Bochner J 7 A submission that the police officer could not, as a matter of fact, have been satisfied of the matters certified in the document misunderstands the very intent and purpose of the statutory provision. The purpose of the certificate is to establish a statutory presumption without regard to the facts. In effect, it reverses the onus of proof. It shifts the onus to the person charged to discharge the evidentiary burden of disproving the facts certified in the document. That is not achieved by pointing to the absence of sufficient evidence of the facts certified before the relevant police officer. The operation of s 175(3)(ba) requires the accused person, if he is to discharge the evidentiary burden that the provision has shifted to him, to prove on the balance of probabilities the contrary of the facts certified. 24 I consider that these authorities are sufficient to address the appellant’s contention that Senior Constable Claughton’s own evidence was sufficient to impugn the integrity of the certificate. His evidence was that he was not an expert in the operation of the instrument, and he considered that the printer formed part of the instrument as a whole. I do not consider that this leads to the conclusion that as a result, he cannot have been satisfied that the instrument was in proper order. Given the nature of the provision affording reliance on the evidentiary certificate, Senior Constable Claughton was not required to form any view as to the whether the instrument was functioning properly. 25 The effect of s 47K is the reversal of the onus of proof as to the operation of the instrument. It is for the appellant to prove, on the balance of probabilities, that the instrument was not in proper order. In the absence of any evidence whatsoever that the analysis function of the instrument was adversely affected when the printer did not work, he has failed to do so. He has done no more than speculate that a malfunction of the printer function would adversely affect the analysis function. 26 This conclusion is supported by the decision of Doyle CJ in Police v Henwood.9 In that case, Doyle CJ considered the question of the proper operation of a breath analysing instrument. He said:10 The notion or concept of the proper operation of a breath analysing instrument must be directed towards aspects of the operation of the instrument that, if not properly followed, will prevent the instrument from indicating a reading or will impair its ability to indicate a reliable reading. There is no reason to think that Parliament was concerned with an act or omission that has no effect on the ability of the machine to indicate a reading, or to indicate a reliable or accurate reading. While, here, we are concerned with whether the instrument was in proper order, rather than whether it was operated properly, I consider these words equally apply. I consider that s 47K(3)(b) is concerned with ensuring that the ability of the instrument to indicate an accurate or reliable reading is not impaired. By doing no more than demonstrating a problem with the printer that was quickly and easily rectified, the appellant has not proved, on the balance of probabilities, that its ability to do so was impaired. 9 (2005) 92 SASR 15. 10 Ibid, [64]. -- 9 of 14 -- [2026] SASC 109 Bochner J 8 27 This ground must be rejected. Ground 2 28 The appellant says that the Magistrate erred in finding that Senior Constable Claughton was the breath analysis operator for the purpose of the appellant’s breath test. He contends that Senior Constable Johnson operated the instrument between the times of 21.25 p.m. and 21.27 p.m., when she was assisting with the printing problem; as a result, the prosecution was required to prove that she was authorised to operate the instrument by the Commissioner of Police. As they did not do so, the analysis results cannot be relied on. In making this submission, the appellant relies on the Cambridge Dictionary, which defines definition “operate”, as “to use or control equipment or a machine or to make something work”.11 29 The appellant says that evidence should have been provided of the authorisation of all police officers who operated the instrument for the purpose of his test, in order to allow reliance on s 47K(1). Further, he says that there is no evidence about what she actually did to the instrument; thus, it is not known if her intervention affected the analysis. 30 The respondent says that the Magistrate was correct to find that Senior Constable Johnson did not operate the instrument for the purpose of the Act. The assistance that she provided was minimal and was not related to the analysis of the appellant’s breath sample. Consideration 31 The Macquarie Dictionary12 defines “operate” in the following way: –verb (i) 1. to work or run, as a machine does. 2. to work or use a machine, apparatus, or the like. 3. (sometimes followed by on or upon) to act effectively; exert force or influence: now the same causes are operating for war. 4. o perform some process of work or treatment. 5. Surgery to perform some manual act or series of acts upon the body of a patient, usually with instruments, to remedy deformity, injury, or disease. 6. (of medicines, etc.) to produce the effect intended. 7. Navy, Military a. to carry on operations in war. 11 Written Submissions of the Appellant, FDN 6 at [44]. 12 Macquarie Dictionary (9th ed, 2023), ‘operate’. -- 10 of 14 -- [2026] SASC 109 Bochner J 9 b. to give orders and accomplish military acts, as distinguished from doing staff work. 8. to carry on transactions in securities, or some commodity, especially speculatively or on a large scale. –verb (t) 9. to manage or use (a machine, etc.) at work: to operate a switchboard. 10. to keep (a machine, apparatus, factory, industrial system, etc.) working or in operation. 11. to bring about, effect, or produce, as by action or the exertion of force or influence. The second definition accords with that relied on by the appellant. 32 I have watched the entirety of the video obtained from Senior Constable Claughton’s body-worn video camera, including the portion showing Senior Constable Johnson’s interaction with the instrument, and I was not able to observe any action or behaviour on her part which could be classified as working, using or running the instrument. At approximately 21.25 p.m. she pressed one key twice, which led to the printer printing something onto the paper. It is not possible to see on the video what is printed, however, it appears to be some sort of test print. She then proceeded to look at a document. She did not touch the instrument again. At 21.27 p.m. Senior Constable Claughton pressed a key that resulted in the instrument printing the analysis result. The only intervention by Senior Constable Johnson was the pressing of a key, twice, to facilitate the printing of the result. The actual printing of the result was commissioned by Senior Constable Claughton, who pressed the necessary key for it to occur. 33 In all of the circumstances, I am of the view that the Magistrate was correct in his conclusion that Senior Constable Johnson did not use or operate the instrument at any time and that Senior Constable Claughton was the sole operator of the instrument for the purpose of analysing the samples of the appellant’s breath. 34 This ground is not made out. Ground 3 35 The appellant says that, because of the delay of approximately 10 minutes between the instrument’s indicating the result of the analysis and the administering of the prescribed oral advice and written notice, they were not delivered “forthwith” as required by s 47K(2a)(a). He says that, in order to have the benefit of the presumption afforded by s 47K(1), the Act must be strictly complied with; a delay of 10 minutes does not amount to strict compliance. 36 The appellant relies on dictionary definitions of “forthwith”, which defines the word as “immediately; at once” or “immediately; without delay or waiting”.13 13 Written Submissions of the Appellant, FDN 6 at [60]. -- 11 of 14 -- [2026] SASC 109 Bochner J 10 He further submits that the case of Fauser v Boyle,14 in which the Court found that a delay of eight minutes in providing the prescribed advice and notice did not amount to a breach of the legislation, can be distinguished on its facts. 37 The appellant submits that Senior Constable Claughton should have provided him with the prescribed oral advice while he was waiting for Senior Constable Johnson to attend to assist with the printer. He submits that the wording of the Act makes it clear that it should be delivered before the written notice. He should have delivered the oral advice immediately on becoming aware of the analysis result. 38 The appellant contends that Senior Constable Claughton knowingly withheld the test results from him, despite his eagerness to know the results. This conduct is not consistent with Senior Constable Claughton’s duty to provide the oral advice forthwith. 39 The respondent says that the oral advice was provided to the appellant immediately once the printer error was corrected. While the legislation does not specifically state the order in which the reading produced by the instrument and the oral advice are given, the Act itself provides first for the provision of the reading, in s 47K(2), followed by the oral advice in the following subsection. This suggests that, if any one of them should be provided first, it is the reading produced by the instrument. 40 The respondent says that the Magistrate was correct to find that Senior Constable Claughton’s conduct was appropriate and that no prejudice was caused to the appellant as a result of the delay. Consideration 41 In Fauser v Boyle,15 Duggan J said: ... The effect of a statutory obligation to comply with a requirement forthwith will depend upon the particular enactment. However it has been held in the case of some statutes that the use of the word does not require compliance immediately without the occurrence of any intervening event. In R v Conley (1982) 30 SASR 226, the Court of Criminal Appeal considered the effect of s 78(1) of the Police Offences Act, 1953 which required that a person apprehended without warrant under the Act “shall be forthwith delivered” into the custody of the police officer in charge of the nearest police station. The Chief Justice said (at 240): The requirement of s 78(1) that the person apprehended be forthwith delivered into the custody of the member of the police force is undoubtedly strict and intended by parliament to be strict. As was said by the Full Court in Drymalik v Feldman [1966] SASR 227 at 234, the obligation imposed on arresting police officers must be 14 Fauser v Boyle (1993) 19 MVR 515. 15 (1993) 19 MVR 515, 518-519. -- 12 of 14 -- [2026] SASC 109 Bochner J 11 understood reasonably. Nevertheless the word “forthwith” cannot be ignored. No matter how reasonably the obligation is interpreted, the word “forthwith” leaves little latitude. It means that the arrested person must be taken to the police station in the shortest time which is reasonably practicable in the existing circumstances. Some delay may be necessitated by the circumstances and may therefore be consistent with the obligation to deliver “forthwith”. There is a competing obligation to keep the peace, to investigate the commission of crime, and to collect evidence. It may be imperative to put some questions to the arrested person without delay in order to clarify some aspect of the situation. It may be necessary to obtain the names and addresses of witnesses at the scene or to take steps to preserve evidence, perhaps even to conduct a quick search of the locality. It may be necessary to cope with an emergency situation. For example, a suspect may be able to lead immediately to a victim who is being held captive, or to money or other property which is in danger of dissipation or destruction, or to accomplices who might otherwise escape. Deviations from the direct route to the police station in order to identify objects or places, or to collect articles from the arrested person's place of residence, place of business or motor vehicle may be regarded as permissible provided that the delay involved is brief. It is not possible to specify exhaustively the examples of delay which may be consistent with compliance with the requirements of the section. Although I am of the view that there is less scope for holding that there has been compliance with the obligation to advise forthwith of the rights referred to in s 47g despite the occurrence of an intervening event or events, nevertheless I have reached the conclusion that the respondent in the present case was advised of these rights forthwith. Although the blood alcohol level was indicated before the checking procedure, the steps which were taken as soon as the reading appeared were intended to verify that reading and were, therefore, directly related to it. Although certificates may be used to prove that the instrument used is in proper order and was properly operated, these matters may be proved by other means Evans v Benson, supra, SASR 326; MVR at 26). Furthermore the fact that certificates might be used as aids to proof of these matters in no way relieves the operator of the obligation (to be inferred from the legislation) of being satisfied that the apparatus is in proper working order and is properly operated. It is my view that if this can be achieved by a process lasting 8 minutes which is performed immediately after the reading appears then it can still be said that the communication of the person's rights was given forthwith after the indication of the concentration of alcohol. In reaching this view I have not forgotten those cases which emphasise the necessity for strict compliance with the provisions of the Act if the presumptions provided for in the section are to be relied upon. However the fact that the information referred to in s 47g(2a) was conveyed on the same occasion that the test was done; that only 8 minutes separated the indication and the communication; and that during that time the accuracy of the machine and therefore the reading were being verified, all persuade me that the section, insofar as it requires communication forthwith, was complied with. 42 While the appellant has sought to distinguish this case on its facts, I consider that the words of Duggan J extend beyond the factual situation that he was dealing with. I, too, acknowledge the necessity for strict compliance with the provisions of the Act; nonetheless, I am not convinced that a delay of 10 minutes between the instrument’s giving the reading and the appellant’s being provided with the oral advice and the written notice amounts to failure to comply. While there was undoubtedly a delay while the instrument’s printing function was fixed, the delay was a matter of minutes only, had no effect on the validity of the reading and did -- 13 of 14 -- [2026] SASC 109 Bochner J 12 not prejudice the appellant’s ability to have a blood sample taken thereafter. The efficacy of the test and the appellant’s rights to have a blood sample taken were in no way affected or altered. Of course, if the delay had been such that the efficacy of a blood test to verify the results of the instrument would have been impaired, that delay would have been in breach of the Act. I am of the view that the Magistrate was correct to find that the prosecution was entitled to rely on the certificate provided pursuant to s 47K(7) of the Act. 43 For completeness, I note the appellant’s submission that Senior Constable Claughton knowingly withheld the test results, despite the appellant’s eagerness to know them. This submission is simply not borne out by the video provided by Senior Constable Claughton’s body-worn camera. At 21.23 p.m., while the appellant was asking Senior Constable Claughton about the failure of the instrument to print the results, Senior Constable Claughton said, “I can tell you the reading if you want to know what it is.” The appellant replied, “The question is about the machine.” This indicates to me that the appellant was less interested in finding out his test result, than he was in endeavouring to establish that there was a fault with the instrument. 44 This ground must be rejected. Conclusion 45 In all of the circumstances, the appeal must be dismissed. The matter will be remitted to the Magistrates Court for sentence. -- 14 of 14 --